Last night, Trump nominated Brett Kavanaugh, a former manservant of Kenneth Starr, for the Supreme Court.
The high-and-mighty closed ranks around Kavanaugh. One of Kavanaugh’s former Yale law professors, Akhil Reed Amar, wrote a hilariously bad defense of his beloved in the pages of the New York Times. The opinion piece was titled “A Liberal’s Case for Brett Kavanaugh.” Like most Times editorial pieces, it showed an impressive lack of judgment:
The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move. Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.” In picking Judge Kavanaugh, he has done just that. ... But today, with the exception of the current justices and Judge Garland, it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh.
This is the language of one elite praising another member of the master class. That almost goes without saying. Nor will it surprise you to learn that Kavanaugh’s bona fides are polished, and his conservative beliefs are beyond question.
Now. You can guess how the rest of this column would usually go.
Right here is the part of the article where I would tell you about Brett Kavanaugh. Where I show you how bad he’s going to be. Where I explain that we have a good year and a half before this sleeper agent begins doing real damage. Where I demonstrate how the new flesh, Kavanaugh, will give the right wing a generational advantage on the High Court.
I could paint you a picture, a true one. It would be easy. You probably already know the highlights. Two years from now, he and the four other right-wing river vipers on Court will have done real damage to American progress. They will undermine gay marriage, abortion, and whittle down the Voting Rights Act until there’s nothing left. They will work their way through the legal structures that protect the oppressed and marginal, until they roll us back to 1960. Maybe even back before Brown vs. Board of Education.
I want to do that. I would love to write that feature.
After all, Brett Kavanaugh has just been named by Donald Trump. That alone makes him suspicious—in the same way that any human thrall of Dracula would be immediately suspect.
Kavanaugh is not the real issue. The issue is the Supreme Court and the long lie of meritocracy, of decency. Of qualification. The Court is a sham, and always has been.
Kavanaugh is not an obvious monster like most of the people associated with the Trump brand.
From all appearances, he is a reliable, old-timey Republican hack, one that George W. Bush might have named.
How do I know this? Because he’s in good with the Washington Establishment. The usual toothless legions of the American pundit class rushed in to sing his praises. They were expecting Joe Arpaio, and here Trump had named one of their own. Watching them collapse their principles in one evening was deliriously funny. Every single principled Never Trump huckster took the bait on Kavanaugh. The whole lot of them.
Donald Trump symbolizes the problem of the moment. But Kavanaugh, and his friends, and the Supreme Court, are our lasting problems. They are the enduring problems, and the enduring problems gave us Trump.
It is fitting that a groomed, inoffensive conservative eunuch like Kavanaugh should be named to the High Bench.
The Supreme Court, an undemocratic klatch of hustling shysters, should never be anyone’s hope: not liberals, not conservatives, not anybody who cares in the slightest about our country. The Court was designed to be public housing for the Kavanaughs of America.
If you are the kind of person who hangs their hopes on the Court, you’re doing democratic citizenship wrong.
The Supreme Court is not your friend. It has had a few decent moments in its history—the aforementioned Brown, for one.
But in almost every progressive case, the Court has come around only when it was safe to do so. There have been more Dred Scotts and Plessys and Citizens United in the Court’s history than celebrations of justice. The Court is a political arrangement cloaked under the guise of disinterested magistrates. Its members are not worthy of your respect, or your hope. They are not just members of the Establishment, they are the rock of the Establishment.
Go down the list. The Court is a home for born cowards. Obergefell was the legal recognition of widespread social acceptance. Roe v. Wade was the nodding, dull embrace of what simple human rights dictated. Again and again, the Court has ruled exactly along the lines of what you would expect from a team of nine wealthy, privileged lawyers to expect.
Kavanaugh is an empty suit, promoted by an empty President, to an empty institution of government, which liberals have repeatedly mistaken for a bastion of defense.
Doesn’t it worry anyone that we’ve fetishized this spavined college of cardinals as our great governmental hope? Doesn’t that seem contrary to the principles of democracy? Why should a free people organized along rational principles hand their well-being to a coven of life-appointed equivocators?
Ask yourself: Where else could an overrated right-wing hack like Scalia be considered a philosopher king? Where else could a tepid, legacy-obsessed half-heart like Anthony Kennedy be fawned over by editorial pages across the country? Where else, I wonder, could a self-adoring contrarian hustler like Oliver Wendell Holmes be enshrined?
The Court’s reputation is mostly an accident of history, and its supposed wisdom would not survive a close inspection or a rational viewing.
Why does it have to be like this? Why are we made to wait on the appointments to this court of constitutional Janissaries? Doesn’t this strike you as insulting? Unworthy of free-born women and men? Are we so different from the peasants of any autocracy, who waited outside the palace walls to hear what courtier their overlord named?
Let us speak frankly. Men like Brett Kavanaugh, a Federalist Society zygote grown in a test-tube at Yale, are exactly the kind of time-serving mediocrities the Supreme Court of the United State is designed to employ, keep, and feed.
In one of the Court’s worst opinions—there are too many to quote exhaustively—the overrated Holmes spoke on a matter of eugenics. In one of SCOTUS’ cruelest moments (Buck vs. Bell) the Court upheld the right of Virginia to sterilize an eighteen-year-old mentally-handicapped woman.
In 1927, Justice Holmes wrote these words about that woman. Her name was Carrie Buck:
It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind …Three generations of imbeciles are enough.
If the question is a matter of interpreting the law, then we must turn to democracy. Not an appointed club of grandees. Why do we need lords and ladies ruling over us?
Doesn’t democracy mean the people ruling themselves? If the American people are good enough to make the laws, aren’t they good enough to interpret those same laws?
When it comes to protecting human rights, I trust the American populace a thousand times more than I trust a guild of Ivy League grifters. The former know what it is to live in the world. The latter have spent their lives courting the powerful, watching their words, keeping away from difficult decisions.
Who is more likely to render better laws? Who is more likely to have compassion for the ordinary person?
Let Kavanaugh be the last attempted appointment to the Supreme Court. Most human societies get along just fine without a chamber of powerful aristocratic word-jugglers. We cannot undo the injustice the Supreme Court has done, or will do, to millions of human beings. But we can apply Holmes’ advice to the Supreme Court itself: “society can prevent those who are manifestly unfit from continuing their kind.” Abolish this supreme farce, once and for all.